Asked to pay back OMP after career break: ask the expert

Following my first period of maternity leave, I took a 2-year career break. During this time I fell pregnant again, so the career break was frozen and second period of maternity leave began for I was paid OMP. Now the career break has finished and I have given the required notice of my return to work. I have requested family friendly hours to fit in with my family commitments. I was offered one role which did not fit in with the requested hours and they were not prepared to be flexible on this. I had a verbal offer of a role which I accepted, but was then told I would have go through a selection process and fill out an application form and attend an interview. I did not get this role. My employer has now written to make me redundant with nine weeks pay. However, they want me to repay the OMP which ultimately means I owe them £5,000. I have appealed this decision and they say their original position still stands. As it was my intention to return to work and not leave, is the OMP repayment clause enforceable? Plus how long is this clause valid for? Do I have a case to go to Employment Tribunal? Currently I do not have a job so have no means of paying them back.

I understand that you took a career break after your initial period of maternity leave and that you fell pregnant again during this career break. You have now finished your career break and have given notice to return to work. You requested family-friendly hours. You were offered one role, which did not fit in with your requested hours and your employer would not be flexible. You were unsuccessful in your application for another role. Your employer has now made you redundant and you have been asked to pay back your occupational maternity pay.

I understand from your email that your career break recommenced after your second period of maternity leave. This is important because if your employer had made you redundant during a period of maternity leave, you would have been entitled to be offered any existing suitable alternative roles in preference to other employees. This preferential treatment would end, however, when your maternity leave ended and your career break recommenced (or you otherwise returned to work). Assuming that your maternity leave had therefore ended, your employer would still need to follow a fair procedure in effecting your dismissal on redundancy grounds. In summary, this would involve, firstly, there being a genuine redundancy situation. A fair and proper procedure would then involve warning, consultation, fair selection and consideration of alternative roles. You may have an unfair dismissal claim against your employer if there is no genuine redundancy situation and/or it has not followed a fair process. Any such claim must be submitted to the employment tribunal within three months of your dismissal.

You also appear to have asked for family-friendly hours. It is unclear whether you have submitted a flexible working request. If you have submitted a flexible working request your employer must follow a set procedure in dealing with your request. Your employer has a three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with you (if appropriate) and notify you of the outcome. Your employer must deal with the application in a reasonable manner. Your employer can only refuse a request for one (or more) of the eight business reasons, which are : –

– the burden of additional costs;

– detrimental effect on ability to meet customer demand;

– inability to reorganise work among existing staff;

– inability to recruit additional staff;

– detrimental impact on quality;

– detrimental impact on performance;

– insufficiency of work during the periods the employee proposes to work; or

– planned structural changes.

You may have a complaint to the tribunal if your employer fails to deal with you application in a reasonable manner, fails to notify you of the decision within the decision period, fails to rely on one of the set grounds when refusing your application, bases its decision on incorrect facts, or treats the application as withdrawn when the grounds entitling your employer to do so do not apply.

You also ask whether your employer can require you to pay back your occupational maternity pay. Your employer can in principle require you to do so, but this will depend entirely on the terms of your contract and/or your employer’s maternity pay policy. You should check the terms of these documents relating to repayment provisions and timescales carefully.

Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.